RE: Comments on “Labor Certification for the Permanent Employment of
Aliens in the United States; Implementation of New System” 67 Fed. Reg. 30466
(May 6, 2002)

Dear Mr. Ziegler:

We are writing to comment on the Notice of Proposed Rule Making issued by the
Department of Labor (DOL) in the Federal Register on May 6, 2002. These
comments are being submitted by the July 5, 2002 deadline, as indicated in the
Federal Register.

Although the proposed changes to 20 C.F.R. Sections 655 and 656 (PERM)
include some positive steps toward creating an improved framework to process
labor certifications quickly and reduce application backlogs, we are concerned
that the following provisions do not reflect contemporary business practices and
may promote instability in the job market.

In order to meet the demands of business, employers must be able to recruit
for the actual position needed and list all skills and applicable experience
required for the position. This proposal would severely limit employers’
ability to designate specific skills needed for a position and would completely
eliminate the business necessity rule. These restrictions would limit employers
to the generic DOT/O*NET job descriptions and leave them incapable of revising
job duties in accordance with changes in technology, future advancements and
specialization, or even in accordance with their own, current business
realities.

The proposal would limit employers’ ability to list experience from related
occupations that may serve as qualifying experience for the position
offered. Employers would not be able to consider an applicant with
alternative experience although that candidate clearly could be qualified for
the position. Eliminating the alternative experience requirement would prevent
employers from staffing in accordance with real-world business practices.

Under this proposed rule, employers would not be able use short, generic
advertisements for multiple positions; this would result in a substantial
increase in costs for employers who currently file Reduction in Recruitment
(RIR) labor certifications. Requirements that employers list their names
on advertisements would conflict with standard practice in many industries, and
could lead to disclosure of confidential company information.

The proposed regulation would not allow any experience to be considered that
was acquired by a foreign national who worked for any entity that was
subsequently acquired by the employer. This proposal would also eliminate
employers’ ability to count specific instances of the foreign worker’s
occupational experience if the experience was gained while working for the
employer, even if experience was gained while working in a different position
than the one described in the labor certification application. Elimination
of the ability to “count” this experience could encourage good employees to
leave a long-time employer because of the impossibility of gaining approval of a
labor certification with the employer, thus creating inefficiency for businesses
and instability in the job market.

The proposal would not let employers reject U.S. applicants who are not even
qualified for the position as advertised, if they would be able to eventually
acquire the skills in which they are deficient through on-the-job
training. This, combined with the fact that businesses would be unable to
recruit for the actual positions needed, is a one-two punch that would serve to
severely restrict employers’ ability to hire a qualified candidate for the
job. The result would be time and money spent on extra training, and
therefore considerable amounts of productivity would be lost for U.S.
companies.

The current regulations allow the actual wage to be within 95 percent of the
prevailing wage as determined by the DOL. Allowing a 5 percent variance is
a longstanding practice for the DOL, based on the fact that wage surveys are not
an exact science. The proposed rule would remove this margin, and
introduce to the process a myth that the information being relied upon is more
precise than it actually is.

The proposed regulations would allow the DOL to revoke a labor certification
for cause if the certification occurred less than one year from the date of
revocation or for an application that hasn’t received a visa number, whichever
comes first. There is no standard laid out in the regulations that
indicates the criteria by which labor certifications would be revoked. If
employers are to have certainty in the workplace, they need to have a standard
by which this provision would be enforced.

We urge you to revise 20 CFR Sections 655 and 656 to address the above
concerns.